Practice context and legislation

Youth justice workers have statutory responsibility to monitor young people’s compliance with the core and special conditions of a court order. The decision to breach a young person's order must be made in consultation with line management.

Under the Children, Youth and Families Act 2005 a young person can be returned to court if they fail to comply with any conditions or amended condition of a probation order (s. 384), a youth supervision order (s. 392), or youth attendance order (s. 408).

There are two grounds on which breach proceedings may be actioned:

non-compliance with general, special or amended conditions of the order

further offences committed during the order for which the young person has been found guilty or intends to plead guilty to.

Breaches can be initiated after the expiry of a court order in the following circumstances:

a young person has been non-compliant during the active period of their order, the warning process has been implemented during the active period of their order and the commission date of the breach occurs prior to the expiry of the order

a young person has been found guilty of offending that occurred during the active period of their order.

The Assistant Director / Manager Individual and Family Support can authorise breach action to return a young person to court, after considering youth justice principles of diversion and rehabilitation, and the need to engender public support and confidence.

Youth Justice Senior Practice Advisor

Provide case consultation in relation to court recommendations, breaches and particularly for high-risk young people. This should occur subject to local area agreements between Assistant Director / Manager Individual Family Support and the Senior Practice Advisor.

Breach by reoffending

If a young person breaches an expired order due to a charge that was committed during the period of the order, breach action must be commenced no later than three months after the finding of guilt of the new charge.

There is no statute of limitations for breaching an expired order, which means that youth justice can proceed with breach action at any time regardless of how much time has passed since the offending occurred.

Breach by non-compliance

In most cases non-compliance requires that the warning and breach process has been considered and/or implemented.

It is, therefore, unlikely that a breach by non-compliance would be applied to an expired order.

However, where the warning process has been implemented during the active period of the order and the commission date of the breach occurs before the expiry of the order, a breach may be listed after the order has expired.

In these circumstances, the breach must still be listed within 14 days of the alleged breach occurring.

It may be appropriate to consider a manager’s warning for a breach of non-compliance.

Matters to take into account when considering a breach

In deciding to proceed with breach action of an expired order, consider:

assessment of current risk

the general attitude and response of the young person to the expired order and/or the warning process

any positive traits or responses displayed by the young person during their order which can be built upon with further youth justice support

any circumstances which might have had an impact on the young person's behaviour or non-attendance during the expired order

the severity of offences relating to the expired order

any relevant sentencing comments by sentencing magistrate

any further charges

time elapsed since the order has expired.

Specifically for non-compliance:

the circumstances/consistency of non-compliance

the young person’s response to the warning process

any known reasons contributing to the non-compliance.

Specifically for reoffending:

the circumstances/seriousness of the new charges

the court outcome of new the charges although this may not be available if breach proceeding is to be listed for the same day.

Lodging a breach before a charge is proven

It is often preferable to both the young person and youth justice to have the breach heard on the same day that any new charges are found proven.

This should only occur when the young person and their legal representative have indicated that a plea of guilty will be entered for the new charges. When this is confirmed, a breach report can be prepared in advance of the hearing.

It is essential that the breach report is only handed to the magistrate or judge after the young person has been found guilty of further offending.

Lodging a breach on the day new charges are proven

Consent must be sought from the young person and legal representative to waive the normal listing timelines and to have the breach heard on the same day that the new charges are found proven.

Approval must be sought from line management prior to filing a breach of an order in these circumstances.

Manager's warning in lieu of breach action

A breach by manager’s warning can be requested after an order has expired.

The following matters must have been considered:

the severity of the offence or consistency of non-compliance

whether the young person made positive progress and complied with the requirements of the order

if the young person was responsive to youth justice directives.

The decision to conduct a manager’s warning in lieu of taking breach action is at the discretion of the Assistant Director / Manager Individual and Family Support in consultation with the team manager and Youth Justice Senior Practice Adviser.

Additional considerations may include:

any directions made by the sentencing magistrate regarding breach action

the severity of offences relating to the current order

any escalation in offending

whether the offences were against a person.

Recording the breach of a closed case in Client Relationship Information System (CRIS)

If the young person’s CRIS file has been closed and breach action is being taken, the impact on the closed case must be recorded in CRIS. Refer to How to breach from a closed case for more information.

CRIS administration

The date of the commission of the offence is recorded as the offence date.

The date of commencement of the breach is the date the notice to appear before the court is issued.

Authorisation to breach an expired order

Consult with team leader to authorise the decision to proceed with breach action of an expired order.

If the decision is not to proceed with a return to court, the reasons must be documented in CRIS.

If the decision is to proceed with a return to court, discuss possible recommendations regarding the breach outcome.

Prepare an application request for authority to return sentencing order to court (form available in CRIS) detailing the reasons for the breach.

Forward the application to the Assistant Director / Manager Individual and Family Support, or Youth Justice Senior Practice Adviser for endorsement depending on agreed local area arrangements.

Record all actions and decisions in CRIS.

Notice to appear before the court

On receiving signed authority to breach the order, complete the notice to appear before the court (Form 9 – available in CRIS).

The notice to appear before the court should contain the following information:

court reference number

client details

location of the court and the hearing date

name and address of the informant (the youth justice worker)

details relating to grounds for the application

name of the youth justice worker lodging the notice to appear before the court

which court the breach will be heard.

Complete separate applications if multiple orders are being breached.

Appropriate dates for the breach hearing

Contact the court to discuss an appropriate sitting date for the breach to be heard. Breach proceedings should be listed to be heard by the magistrate who issued the original order.

If the magistrate is no longer available, the legislation allows for any other magistrate to hear the matter.

Consent is required from the young person and their solicitor where the original magistrate is still in office but for some reason an alternate magistrate is to hear the matter. Record this consent in a clearly titled case note in CRIS.

Where possible, have breach proceedings listed on the same day as the offence/s that breach the order are to be heard.

Negotiate with the appropriate court for a hearing date suitable to both the magistrate and youth justice.

Listing the breach

List the breach by having the registrar at the court sign the notice.

Check that the court date is printed at the bottom of the form.

Ensure that you have two original signed documents – one to serve on the young person and another to be later placed on the court file.

Informing the young person

Inform the young person of the listed breach proceedings.

If the young person’s whereabouts are unknown, make all attempts to locate them before sending notification to the young person’s last known address.

Prepare a letter to be sent to the young person informing them of the breach proceedings, the reason for the breach and the date they are required to attend court.

Attach a copy of the completed notice to appear before the court.

Serving the notice to appear before the court

Allow three weeks so that the notice to appear before the court can be served on the young person before the court hearing.

The Act requires that the notice be served, by post, not less than 14 working days and in person not less than five days, before the court hearing.

Attempt to personally serve the young person with the notice to appear. If this cannot be done:

send a copy by registered post to the young person’s usual, or last known address

leave a copy with a person over 16 years of age at the young person’s usual or last known address.

Young people under the age of 15 years

When the young person is aged under 15 years the notice to appear before the court must be served on the young person’s parents or guardian.

Inform them of the reason for breaching the young person’s court order.

Affidavit / declaration of service

Once the notice to appear before the court has been served, complete an affidavit or declaration of service detailing how the letter and notice to appear before the court were given to the young person.

An affidavit or declaration of service can be sworn before a court registrar or justice of the peace.

Ensure that the court where the breach is listed retains the original notice to appear before the court and affidavit.

Retain copies for the young person’s file and for tendering to the court if necessary.

Record all details on the young person’s file in CRIS.

Commencement of breach proceedings

All breach proceedings must commence in the children’s court.

This includes:

breaches of orders that have been imposed by a superior court

breaches of orders by people who are aged 19 years or over.

Outcomes of breaches may be issued in alternative jurisdictions, depending on the offences and/or age of the young person.

Presenting a breach

In most cases, it is the responsibility of the young person’s previous youth justice case manager to present the breach in court.

This role may also be undertaken by the court advice service worker or their delegate.

If the breach is complex, to be heard in a higher court or is being contested by the young person, request a departmental legal representative to prosecute the breach.

Refer to procedure for ‘Prosecuting a breach in court’ for further information.

Legal representation for young people

A young person must be legally represented in respect of a breach of a community based youth justice order.

The case manager should ensure that the young person is aware of this and, if required, assist them to access legal representation.

See procedure on ‘Legal representation’ for further information

When a young person is in custody

Complete a ‘Form 15: Order to bring a person before a court, including coroner’s court’ and arrange for it to be signed by a magistrate.

Form 15 is the formal documentation required to bring a person before the court, and it can be found in CRIS.

Inform youth justice precinct staff of the forthcoming breach proceedings and fax a copy of the signed order to the assigned custodial worker.

Preparing and submitting the breach report

Prepare the breach report in accordance with CRIS requirements and ensure the requisite level of endorsement is obtained.

If the breach is for reoffending, only hand up the report to the magistrate after the new charges have been found proven.

If the breach is for non-compliance, the report should be submitted to court before the date the breach is listed.

Refer to the procedure for ‘Recommending a court order’ for more information.

Making a recommendation

Legislation states that youth justice must recommend an appropriate sentence for the breach.

Consider group conferencing as a potential recommendation for a breach. Refer to procedure for ‘Assessing suitability for group conferencing’ for further information.

If it is not possible to make an appropriate recommendation, the breach report should reflect why this is the case.

Refer to the procedure for ‘Recommending a court order’ for more information.

a court extract in relation to offences that breach the order (if available)

breach report.

If the breach is being contested, include the young person’s CRIS attendance record for supervision and special conditions.

Provide original copies of all documents, other than the breach report, in the breach proceeding, to the magistrate presiding over the breach.

Provide copies of all documents, other than the breach report, to the young person’s legal representative.

Release of youth justice reports to police

Do not forward copies of youth justice reports to police unless the young person has signed a consent form for the release of the report.

If a young person has provided consent for the release of a report, the decision to release all information contained in the document is at the discretion of the youth justice team manager.

If youth justice decides not to release a report, the police can seek a copy by warrant or subpoena.

The above requirement also extends to police prosecutors.

Breach outcome

If the presiding magistrate is satisfied the young person has breached the order, hand up the breach report to the magistrate.

Copies may then be given to the young person, the young person’s legal representative and any other person whom the court has ordered to receive a copy.

Following the breach of an expired order, the court:

can impose any sentence it thinks fit

in the case of a youth attendance order, must not impose a custodial sentence for a period longer than the period of the breached youth attendance order.

Breach of a confirmed order

Where an order has previously been returned to court for breach proceedings and been confirmed, the original order cannot be breached again for offences or non-compliance that predate the confirmation of the order.

A confirmed order can be returned for breach action arising following the confirmation date.

Warrant outstanding

Where a warrant has been issued for a young person’s failure to attend court this can be recorded in CRIS against the court order by selecting 'breach – warrant outstanding'.

If the warrant is still outstanding at the time of expiry, and four to six weeks has lapsed since the warrant was issued, the case can be closed.

Prior to closing, ensure that all necessary reports and breach paperwork is attached to CRIS, to ensure prompt prosecution of the breach when the warrant is executed.

Record breach outcome in CRIS

It is very important that the order outcome is recorded accurately in CRIS – not just within the court appearance or new order screen, but also against the original order.